Summary of a Recent
Judicial
Development in
Animal Feeding Operations
Clean Air Act Citizen Suit Survives Motion to Dismiss Even
Though State Felt Suit Was Unwarranted
Eric Foy, Graduate AssistantNational AgLaw Center Research Associate
In Association of Irritated Residents v. Fred Schakel Dairy, No. 1:05-CV-00707, 2008 WL 850136 (E.D. Cal. Mar. 28, 2008), Fred Schakel Dairy (Defendant) sought to dismiss the Association of Irritated Residents (AIR) allegation that Defendant violated the Clean Air Act (CAA) by building a dairy facility that emitted methanol, a Hazardous Air Pollutant (HAP), in a non-attainment area without obtaining a pre-construction permit. The CAA requires states to designate areas within its boundaries as non-attainment areas if the air quality fails to meet National Ambient Air Quality Standards (NAAQS) for a particular criteria pollutant. Id. at *2. The San Joaquin Valley Air Basin was designated as a serious non-attainment area, and therefore the state had to adopt a plan (SIP) to meet the NAAQS by a specific date. Id. The CAA mandates that the SIP require pre-construction permits, also called New Source Permits (NSR), prior to construction or operation of new sources of the criteria pollutant. Id. In addition, new sources must install the Best Available Control Technology (BACT) when the potential to emit volatile organic compounds (VOC) exceeds two pounds per day, and purchase offsets or emission reduction credits for VOCs when the source's potential to emit exceeds 10 tons per year. Id. The Environmental Protection Agency (EPA) must promulgate technology-based National Emission Standards for Hazardous Air Pollutants (NESHAPs) for categories of sources that emit any HAP. Id. The emission standards are based upon the maximum achievable control technology (MACT) for sources in each category. Id.
Because the EPA had not promulgated any NESHAPs for dairies, the San Joaquin Valley Air Pollution Control District (District) was required to make MACT determinations on a case-by-case basis. Id. Prior to construction, Defendant failed to obtain an Authority to Construct (ATC) permit from the District. Id. Following the construction, the District proposed to find that the dairy emitted less than ten tons of methanol per year and was not a major air toxics source; therefore, a MACT determination was unnecessary. Id. The District later approved Defendant's ATC permit finding that the Dairy was not a major source of HAP under the CAA. Id. In response, AIR filed suit seeking declaratory and injunctive relief, the imposition of civil fines, and attorney's fees. Id. at *4.
Defendant argued that the court lacked jurisdiction to hear the citizen suit because it is the province of the EPA or authorized state agency to enforce the provisions of the CAA. Id. at *6-7. The court held that neither the text of the CAA or its legislative history expressly gives the EPA or state agency the exclusive authority to enforce the Act's provisions. Id. at *7. Therefore, although the District determined that no ATC permit was required, as long as a citizen complies with the statutory prerequisites to bring an action under the CAA, the district court has jurisdiction to decide whether a permit is required even if the EPA or authorized state agency decides otherwise. Id. Defendant also argued that Plaintiff failed to exhaust all administrative remedies. Id. at *8. The court found that the CAA does not contain an express exhaustion of administrative remedies requirement, Defendant's motion to dismiss was denied. Id. at *9.
The case was decided on March 28, 2008.